Arrowsmith v. Harlingen's Executors

1 N.J.L. 26

• Court: Supreme Court of New Jersey
• Decided: May 15, 1790
• Status: Published

Opinion

In delivering the opinion of the court the Chief Justice said—

That Coovert the purchasing executor was a trustee, and as such, neither law nor equity would permit him to prejudice the Cestui que trust.

(a) Equity will not permit a trustee to purchase! (b) and if he ’does make use of property confided to him, he will be answerable for all the profits he may make, Brown v. Litton, (c) If he buys off an incumbrance of £500 for £10 he will only be allowed the latter sum when he accounts. The sense of all the cases is, that he is appointed for the benefit of others, not of himself.

I can never agree that an executor shall purchase in 1777, and in 1779 pay the one twentieth part of the value to the Cestui que trust by a certificate and endorsement, a mode of payment which there has been no law shown to warrant. We wilt not permit a man to discharge a solemn trust confided to him in this manner. Tenders are likewise stricti juris, and cannot be inferred by implication, they xnust be clearly and regularly proved; and equity never will supply any deficiencies in the testimony.

j bdgment on the verdict with Interest from time of sale.

а) Note.—See Walley v. Whalley, I Vern. 484, and Keeck v. Sandford, Sel. ca. in Cha. 61.

See Lazarus v. Bryson, 3 Bin. 54.

10 Mod, 30.